Judicial pronouncements on the issue of Triple Talaq in India

June 5, 2017

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In this article, Akshay Sharma discusses important judicial decisions on the issue of Triple Talaq.

Introduction

Triple Talaq is one of the most controversial issues prevalent in the country till and the stand of the judiciary was never the same over the issue of Triple Talaq. It always keep changing which some courts upholding the validity of the Triple Talaq and some did not. Various Women Organizations for long have been fighting for the rights of the Muslim women and contending that the Triple Talaq is unconstitutional in nature and violates the Fundamental rights of the women.
The matter was not so voiced during the UPA regime from 2004-2014. But with the advent of the right wing Party at the Centre and BJP taking up vociferously the issue of Triple Talaq during UP elections, the issue took up pace these with the matter being heard by the Constitution Bench of Supreme Court and the Judgement being reserved.
This appeal also deals with the procedure of communicating triple Talaq and since it is appeal the Hon’ble Court didn’t discuss the legality of Triple Talaq.
“Divorce is most detestable in the sight of God; abstain from it, Divorce shakes the throne of the God.”[1] disapproved form of divorce is talaq by triple declarations in which three pronouncements are made in a single tuhr, either in one sentence. Such a talaq is sinful in Hanafi law.[2]
The law of divorce whatever its utility during the past, was so interpreted at least in Hanafi school that it had become a one sided engine of oppression in the hands of the husband.[3] As The Prophet of Islam did not favour the institution of talaq, the revocable form of talaq are considered as the approved and the irrevocable forms are treated as the “disapproved” forms.[4]

If he abandons his wife or puts her away in simple caprice, he draws upon himself the divine anger, for the curse of God, said the Prophet, rests on him who repudiates his wife capriciously. In other Islamic State, where the husband must satisfy the court about the reasons for divorce.

Judicial Pronouncement On Triple Talaq

Talaq-ul- biddat is sinful in the Islamic law

In the case of Rahmtullah v. State of UP[5], Hon’ble Justice Tilhari of the Allahabad High Court observed that;

“talaq-ul-bIddat, that is giving an irrevocable talaq divorce at once or at one sitting or by pronouncing it in a tuhr once in an irrevocable form, without allowing the period of waiting for reconciliation or without allowing the will of Allah to bring about reunion, by removing difference or cause of difference and helping the two in solving their differences, runs counter to the mandate of the Holy Quran and has been regarded as by all under Islam-Sunnat, to be sinful.”

In the case of Yousuf Rawther v. Sowramma,[6] Justice Krishna Iyer held that the triple Talaq is against the spirit of Holy Quran and that power of divorce is in the hands of the Muslim men. It is the misinterpretation which has led to the practice of the custom of triple Talaq.

Triple Talaq is a Unilateral form of Divorce

In the case of Mst. Zohara Khatoon v. Mohd. Ibrahim[7], the Hon’ble Supreme Court noted that, “there can be no doubt that under the Mohammedan law the commonest form of divorce is a unilateral declaration of pronouncement of divorce of the wife by the husband according to the various forms recognized by law. A divorce given unilaterally by the husband is especially peculiar to Mohammedan law. In no other law has the husband got a unilateral right to divorce wife by a simple declaration”

The Triple Talaq in this form not only makes Muslim women victims of arbitrary and whimsical decisions of their husbands, but being unilateral in nature, it also robs them of the liberty to choose the form of divorce they want.

Triple Talaq is unlawful

In Qur’an commentary of well-known author Ibn Kathir,[8] it is commented as follows

“Pronouncing Three Divorces at the same Time is Unlawful The last Ayah we mentioned was used as evidence to prove that it is not allowed to pronounce three divorces at one time. What further proves this ruling is that Mahmud bin Labid has stated as An-Nasar recorded – that Allah’s Messenger was told about a man who pronounced three divorces on his wife at one time, so the Prophet stood up while angry and said “The Book of Allah is being made the subject of jest while I am still amongst you?” A man then stood up and said, “Should I kill that man, Messenger of Allah?”

In the recent case of Smt. Beena and Another v. the State of UP & others,[9], Justice Suneet Kumar of Hon’ble Allahabad High Court held that;

“The instant divorce (Triple Talaq) though has been deprecated and not followed by all sects of Muslim community in the country, however, is a cruel and the most demeaning form of divorce practiced by the Muslim community at large. Women cannot remain at the mercy of the patriarchal setup held under the clutches of sundry clerics having their own interpretation of the holy Quran. Personal laws, of any community, cannot claim supremacy over the rights granted to the individuals by the Constitution.”

Conditions of a Valid Triple Talaq

In the case of Sayid Rashid Ahmed v. Anisa Khatun[10], Justice Baharul Islam observed that, “Reasonability as an essential for Talaq; Reconciliation attempts by the elders or the well-wishers of the family to be of utmost importance before commencement of Talaq” and “ it may be effected” if the said effects fails. An attempt at reconciliation by two relations one each of the parties, is an essential condition precedent to talaq.[11]

Talaq should be preceded by the reconciliation attempts. In the case of Rukia Khatun v. Abdul Khalique Laskar,[12] it was held that Talaq was only to be pronounced after failed attempts between the husband and the wife, after each appointed an arbitrator to solve the dispute. Without reconciliation, the commencement of divorce is held to be in contempt with the saying of the Holy Quran. This observation was upheld by the Justice Badar Durrez Ahmad of the Delhi High Court in the case of Masroor Ahmad v. State (N.C.T of Delhi) & Another,[13] and he further held that;

“Reconciliation before the procedure of the divorce is of utmost importance and is in concurrence with the Holy Quran. It is of utmost necessity to follow the procedure of divorce as written in Quran and proper reasoning to be given before the commencement of the Divorce”

There Must Be A Reasonable Cause

The Hon’ble Supreme Court in the case of Shamim Ara v. State of UP,[14] held that the correct law of divorce as ordained by Holy Quran is that Talak must be for reasonable cause; and it must be preceded by an attempt of reconciliation between the husband and the wife by two arbitrators. Therefore, the factum of divorce is required to be proved by the husband including the condition precedent there. The Kerala High Court in the case of Mohammed Haneefa v. Pathummal Beevi,[15] denounced the practice of Triple Talaq and declared it as the “sufferings of monstrosity for Muslim wives”.

The correct law of Talaq as ordained by the Holy Quran is that Talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters– one from the wife’s family and the other from the husband’s; if the attempts fail, Talaq may be effected.[16]

Triple Talaq must be Preceded by Process of Conciliation

Furthermore, in the case of Dilshad Begum Ahmedkhan Pathan v. Ahmad khan Hanif Khan Pathan & Anrs,[17], the Bombay High Court held that mere pronouncement of Talaq by the husband or merely declaring his intention or his acts of having pronounced Talaq is not sufficient and does not meet the requirements of law. In every such exercise of right to Talaq the husband is required to satisfy the precondition of arbitration for reconciliation and reasons for talaq.

In the case of Kunhimohammed v. Ayishakutty[18], the division Bench of the Kerala High Court after reviewing the earlier precedents and the authorities of Muslim law held that;

“Following the decision of the Supreme Court Shamim Ara (supra) and decision of the Division Bench in Ummer Farooque (supra), it is evident that compliance with the mandate of Ayat 35 of Sura IV that two arbiters must be appointed and an attempt for reconciliation by them must precede the divorce is an essential, non-negotiable and unavoidable pre-requisite.”

Hence, there are following conditions which need to be fulfilled before pronouncing the Triple Talaq;

Conveying the Reasons for Divorce to wife;
Appointment of Arbitrators;
The Arbitrators resorting to conciliation Proceedings.[19]

Only after the failure of the reconciliation proceedings or a situation where it is impossible for the marriage, the husband can pronounce the divorce to the wife.[20]

Judicial Pronouncement upholding the validity of Triple Talaq

In the case of Saiyid Rashid Ahmed v Anisa Khatun,[21] the Court approved the views of Sir R. K. Wilson, in his digest of Anglo Mahomaden Law (5th Edition) that “triple talaq though sinful is a valid form of divorce under talaq-e-bidat.” The High Court in the case of In Re: Abdul Ali Ishmailji,[22] said that “talaq-e-bidat, which is effected by three repudiations at the same time, appears from the authorities to be sinful, but valid.”

The Court recognized talaq-e-bidat to be valid under law. Also, in the case of Sarabai v. Rabiabai,[23] the High Court viewed that “there can be no doubt that a talaq-e-bidat or irregular divorce is good in law though bad in theology.”

Furthermore, in the case of Amiruddin v. Musammat Khatun Bibi,[24] the High Court held that:

“Basically Sunna sanctions only two modes of divorce, but since the second century of the Mahomaden Era talaq-e-bidat has been recognized as a valid mode of repudiation and once pronounced cannot be revoked.”

In Masrat Begum v. Abdul Rashid Khan,[25] reference was made to Hedaya, Commentary on Islamic Laws by Shyakh Burhanuddin Abu-Bakr-al-Marghinan, which states that:

“If a husband gives three divorces at once, the thee hold good but yet the divorcer is an offender against the law.” The Hon‟ble Supreme Court in the case of Zohara Khatoon v. Mohd. Ibrahim,[26] observed that “unilateral declaration of pronouncement of divorce is the commonest form of divorce in Mahomaden Law and has to be accepted as being legal.”

In the matter of Amad Giri v. Mst. Begha,[27] the High Court observed that: “The talaq-e-bidat is the most prevalent form of obtaining divorce in India. Any changes in this respect cannot be brought about by judicial interpretations.”

Conclusion

Triple Talaq being a practice related to the Muslim community, the judiciary was always reluctant to decide upon the matter authoritatively and thats why there is such a huge disparity among the decisions of various courts. The solution to all these can be a decision by the Constitution Bench which heard the matter on a daily basis and reserved the judgement, with the pronouncement of this judgement the law regarding Triple Talaq can be settled for once and forever.

Judicial pronouncements on the issue of Triple Talaq in India

Introduction

Judicial Pronouncement On Triple Talaq